THE DANISH JUDICIAL CODE.* A STUDY IN COMPARATIVE LAW. I. INTRODUCTION. The great difference existing between .\nglo-American and continental European law can. in the main. be referred back to their differences in the matter of procedure.. English-American procedure has developed out of the in- quisitions introduced by the Plantagenet kings, in other words, criminal procedure is its basis. Continental European procedure has developed out of Roman rules of procedure as interpreted and practised by the ecclesiastic courts in civil matters. Equity practice is its basis. The basic principle of Anglo-American law of procedure is that true principle of criminal law, that accusations are untrue in contemplation of law, untif they have been proved. Trans- ferred to the realm of civil procedure, this means that allega- tions are to be contradicted, and are untrue in contemplation of law until they have been proved. The basic principle of continental European law of pro- cedure is that true principle of equity, that the truth must be stated and the case decided upon the true state of facts; and as neither party is over likely to tell the naked truth, the court must make inquiry of its own motion. Transferred to the realm of criminal procedure. this means that the accused becomes a witness against himself, it leads to the inquisitorial form of criminal procedure. In the course of the last one hundred years the two sys- temis have greatly influenced each other. It is now many years since the pure inquisitorial system of criminal procedure held sway anywhere. Denmark (lid not abolish inquisitorial criminal procedure until 1916. but there it had never been practised in its pure form; as long as it did hold sway (less than one hundred fifty years) a defensor was always appointed for the ac- *Of April i. xi6. (543) 544 UNIIERSITY OF PEA.SYLI' NIA L.-II REVIEW cuhCd and paid by the county or state, unless he chose to select his mwni counsel. Still, by its very nature it cohull not help lead- ing to abuses in a tunber of cases, Wid attenpts to get rid of it have been continuously male for the last seventy years: but they did not succeed until .19t6. On the other hand. confinental civil pr,,cedure has con- tinuallh influenced .\nglo-.\lerican c rnis ol0 prledure. The old formalistic rules are dying out. tl'cr, is a constantly in- creasing tendency to lind! (ut what the quarrel really is about; even the rules of evidence. the citadel of true E:nglish law of lricedure, are relaxing froli day to day. As a result, the two s ':tlM, both a. regards criminal and civil procedure, have been Cillllg lcater and nearer together for a whole century. Still. there are 5any differences left. What remains of the rules of evidence is (ne (of tIheliII. But the nlain difference is t, be found in the preparation of cases, in the pleadings and other preliminary steps which must be taken before the trial, also in the nature of the trial. The following relarks refer to civil procedure only: As to pleadings. in brief it may be. said that, in Englikh- Anerican law their ideal object is to "frauie an issue" to which inav be answered yes or 110: while in continental law, their object is to state. how the matter originated, how it developed, and what the mutual contentions are. In English-American law there is no step between the pleadings and the trials, while in continental law there generally is .tpreliminary hearing of. the parties themselves, where they are confronted with each other and questioned, the one by the other or by his attorney, and by the court; the object being to sift down to the narrowest point the matters really in dispute which require proof. In continental European law the parties are considered and treated'as parties with the duty to tell the truth. As a rule they are not sworn, but if found to have bcnl lying. they are prosecuted and pun- ished. not for perjury, but for "false declarations before a court." THE DANISH JUDICIAL CODE In other words, in English-American law, the trial involves, both the development and the proof of the case, while on the continent the case has been developed before trial, and the latter reduces itself to the furnishing of proof of a few contested points. The story of the case is never told at the trial, it has been told before; the trial is for the purpose of "trying" whether the story told is true. Under the continental system, the preparation of the case for trial takes longer time and more work, but the trial itself takes much less time, and as far as expeditiousness is concerned, both systems are about equally gotd. However, the manner of trying cases on the continent, by necessity (since the elimina- tion of the purely formalistic rules) does away with almost all rules of evidence, and new trials granted on account of errors in admitting evidence are practically unknown; when they are allowed, it is almost in all cases by reason of after-discovered evidence. The Code and Its Divisions. The new Danish Code is probably the latest systematic at- tempt to establish a forni of procedure. both civil and criminal, built upon modern principles and with the avowed object of doing justice without interfering more than absolutely neces- sary with the individual freedom of man. The going into effect of the code depends upon the enact- ment of two supplementary laws both of which were enacted on the same day as the code. Thereupon the Minister of Jus- tice must publish a notice io that effect in the Statstidende (Official Gazette), and six months thereafter the code becomes effective. So it is probably working by this time. The code is divided into five books, ninety-five chapters and 1043 sections. The titles of the books are as follows: Book I. The Judi- cial.Power &c.;Book IL Rules Common for Civil and Criminal- Cases; Book III. The Civil Procedure; Book IV. The Criminal Procedure; Book V. Final and Temporary Rules. 546 UNIVERSITY OF PENNSYLVANIA LAW REVIEW The Courts. All of the courts have jurisdiction in Iboth civil and criminal cases, but in some of the larger jurisdictions there are separate judges for criminal cases. The courts are: One HIijesteret (Supreme Court), sitting in Copenhagen: two Landretter (Superior Courts), one called the Eastern sitting in Copenhagen, and the other or Western, sitting in Viborg. There are eighty-nine courts of first instance, One of them for Copenhagen. the others distributed over the cities and counties of* the countrv. In addition there is the Admiralty and Commerce Court of Copenhagen. All of these courts and their procedure are regulated by the code; outside the code are The Court of Impeachment (Rigsretten), the Ses- sions (deciding questions relating to duty to serve in the army and navy), the ecclesiastical courts and the military courts, like- wise consular courts, as well as certain industrial courts or- ganized for the purpose of settling labor and similar disputes. The Supreme Court is composed of a president and twelve associate judges. -Nine judges must take part in the hearing and deciding of each case; when less are present, the president calls one or more judges of a Landret to sit in the court and participate in the decision. The Eastern Superior Court (Copenhagen) has a president and seventeen ass)ciate judges; the Western a president and twelve a.sociate judges. -Three judges must participate in the hearing and tlispositioun of each case. The Admiraltv and CJonunerce Court consists of a president and a vice-president who, like all other law judges, are appointed by the king, and of a certain number of lay members elected by certain marine and commercial bodies of a semi-official stand- ing. Each case must be heard by the president (or vice-presi- dent) and four or two lay judges, according to its importance. The eighty-nine courts of first instance, as a rule, have but one judge. But that of Copenhagen lias a president and twenty associate judges. Of these two are sheriffs and two are pro- bate judges; each of the remaining presides in one of the six- teen departments of the court. General rules for the distribution THE DANISH JUDICIAL CODE of the busine-s are framed by the president with the approval of the minister of justice. Within these limits the president distributes the business; he also distributes the judges, having first consulted th,:y- and when necessary he can order a judge to a-ssume the presidency o\ er another department than his own. In Frederiksberg there are to be three judges, the distribu- tion of the business among N horn is to be fixed by royal decree. All the other courts have but one judge, except that where the population within the county has reached 40,ooo according to the last cens-us, a separate judge is to be appointed for the administration of criminal and probate cases (including bank- ruptcy). At present there are nine such jurisdictions. All of the civil judges of the courts of first instance are also recorders of deeds, as all documents (or short abstracts of them) must be read in open court, before they can be recorded, and the certificate of record must set forth in detail all objec- tions to the title, not mentioned in the document itself. Attached to each of these courts is a court-secretary or scrivener, corresponding to our prothonotaries or county clerks, but having as well the actual recording of real estate and other papers, and searches in charge.